A Triple...a Trifecta...a Hat Trick: Massachusetts Employers Need to be Aware of These Three New Laws

So much for the dog days of summer--there are new laws requiring our attention! Today we cover three important Massachusetts laws, two of which are brand new and one that (we hope) you've heard of before. It is critical that Massachusetts employers take the time now to become familiar with these laws and to implement action plans before the effective dates in 2018. Hard to believe but 2018 is only months away - prepare now so that you are compliant and protected then.

Employer Contributions to Health Care: On August 1, 2017, to help pay for the growing MassHealth program, Governor Baker signed into law $200 million in new fees and fines on Massachusetts employers. The Bill indicates that all Massachusetts employers who have more than five employees must pay a fine - 5% of the employee's wages - for every employee who receives his or her insurance through MassHealth. The fines are effective as of January 1, 2018.

What Employers Should Do Now:

• Evaluate your healthcare plans for their competitiveness with State plans.
• Poll your workforce to determine enrollment in company plans versus State plans.
• Analyze the fiscal impact of updating plans to boost enrollment or paying required fines.
• Encourage employee enrollment in existing or updated plans.

We are here to help with your analysis and employee outreach.

Massachusetts Pregnant Workers Fairness Act: On July 27, 2017, Governor Baker signed into law the Massachusetts Pregnant Workers Fairness Act, which expands the state's anti-discrimination statute by prohibiting discrimination on the basis of pregnancy or a condition related to pregnancy, including lactation or the need to express breast milk for a nursing child.

The Act also requires that employers provide reasonable accommodations for an employee's pregnancy or any condition related to the employee's pregnancy unless the employer can demonstrate that providing the accommodation would pose an undue hardship. Included among the list of possible reasonable accommodations is:

• More frequent or longer paid or unpaid breaks;
• Time off to recover from childbirth with or without pay;
• Acquisition or modification of equipment or seating;
• Temporary transfer to a less strenuous or hazardous position;
• Job restructuring;
• Light duty;
• Private non-bathroom space for expressing breast milk;
• Assistance with manual labor; or
• Modified work schedules.

The above list is not exhaustive - employers are required to engage in a good faith, timely, interactive process with the employee to determine what reasonable accommodations would enable the employee to perform the essential functions of her job.

The law allows employers to request documentation about the need for a pregnancy-related accommodation from an appropriate health care provider. However, employees cannot be required to obtain documentation for the following accommodations:

• More frequent restroom, food, and water breaks;
• Seating; and
• Limits on lifting over 20 pounds.

Employers are required to notify employees of their rights to be free from pregnancy-related discrimination and to receive a reasonable accommodation for pregnancy-related conditions. Notification must be made in writing, via a handbook or similar means, as follows:

• New employees: at the commencement of employment;
• Existing employees: on or before January 1, 2018;
• An employee who informs the employer of a pregnancy or of a condition related to the employee's pregnancy including: within 10 days of becoming informed.

What Employers Should Do Now:

• Ensure Human Resources Personnel and Managers are aware of the requirements of the new law.
• Review and update stand-alone policies, as needed.
• Review and update your employee handbook, as needed.

We are here to help with training, communications, drafting of policies, and handbook rewrites.

Massachusetts Pay Equity Act: Governor Baker signed this act back in 2016, so it isn't exactly breaking news like the previous two laws. Regular readers will recall that we've actually written about it this law a few times already. Because it is a big deal, we believe it is important to remind you to be ready when this law takes effect on July 1, 2018.

Here's a brief refresher on the law:

• It requires "equal pay" for "comparable work." Comparable work is defined as work that "requires substantially similar skill, effort and responsibility and is performed under similar working conditions."
• It narrows the permissible defenses to differences in pay to include only a distinct list of factors: "education, training or experience."
• It makes it unlawful for an employer to discourage, prevent, or punish an employee who discusses, discloses, or inquires about wage information.
• It limits an employer's inquiries into a prospective employee's wage or salary history.

What Employers Should Do Now:

• Create an affirmative defense against liability by conducting a Pay Equity Audit and making "reasonable progress" toward eliminating pay differences based on gender.
• Perform an audit of your recruiting processes, documents, and systems.
• Provide updated training to recruiters, hiring managers, and compensation professionals.
• Modify paper or electronic forms to reflect the limitations placed on salary history inquires.
• Review and update existing policies or employee handbooks to ensure compliance with the law. Existing language restricting an employee's discussions of pay related information should be removed.

We are here to help with training and form revisions. We are also here to be your partners in completing your Pay Equity Audit. By partnering with an attorney, the process is protected by the attorney-client privilege. Any pay equity found will be kept strictly confidential.

Please contact us for assistance or questions any time. We can help. 508.548.4848 or [email protected]